As the news items below indicate, the spring has been busy with transportation conferences and speeches by DOT & FMCSA administrators like Secretary Chao and Administrator Martinez. 2019 is gearing up to be a loaded year with numerous regulatory creations, updates, and enhancements. Stay abreast of these updates by following our LinkedIn and Facebook pages.

We have new and updated pre-recorded training webinars available on our website. Once logged in, these webinars are easily accessible via the Tools tab. Simply hover over the Tools tab and then click on Webinars.

The four webinars we chose to update first are listed below. If you need a refresher or you’re looking for training videos for new users, we would recommend starting with these three.

Introduction to CAB: Flow and Navigation-This 21 minute webinar is ideal for introducing new users to CAB and how it works or providing a solid refresher for current users. It provides an introduction to Carrier Central and the search functionality available. Additionally, it provides an introduction to the information available in the CAB report. To view the webinar, click here.

BASICs Calculator: Introduction-The BASICs Calculator is a premium tool has been around for a couple years, however we’ve added a number of enhancements including the Advanced Projections Tool. This 14 minute video introduces users to the functionality of the tool. The tool is especially useful for loss control, producers, account executives and the like. To view the webinar, click here.

CAB List Training-CAB List is a strong and useful tool that you should be using to track and monitor the motor carriers you’re working with. It allows you to verify carrier and group health all while providing notifications for CAB-BASICs Alerts, ISS-CAB Changes and Safety Ratings, to Inspections and Crashes. This 21 minute video will help you better understand your book of business throughout the policy year. To view the webinar, click here.

CAB Financials-This 6 minute webinar discusses what the CAB Financial Rating is, what is evaluated and how it is determined. In addition, it details the 6 levels of the CAB Financial Rating. To view the webinar, click here.

We encourage you to keep an eye on the Webinars page, as we will be rolling out updated videos on a regular basis.

We at CAB are constantly striving to improve our tools and resources to create value for our subscribers. Please feel free to contact us directly if you have any suggestions as to how we can enhance our services. We are a customer driven company and our goal is to help you Make Better Decisions!

This month we report:

FMCSA has sent Proposed Hours-of-Service (HOS) Changes to White House. In early April Ray Martinez, Administrator of the FMCSA acknowledged that the agency is seeking to provide additional flexibility to drivers while maintaining current safety standards as they relate to the HOS. The trucking industry has been seeking information about the proposed changes since last fall when the DOT received more than 5,200 comments in response to a request for input on ways to make the HOS rules more flexible. Input requested included the following: Extending the maximum workday to 14 hours for 100-air-mile drivers; Extending the 14-hour limit to 16 hours when a driver encounters adverse driving conditions; Revising or even eliminating the 30-minute rest-break provision; Restoring flexibility to the split-sleeper-berth provision; and Petitions on rest breaks and the 14-hour rule. Additional information regarding this Notice of Proposed Rulemaking can be found here.

CVSA’s 2019 North American Standard Out-of-Service (OOS) Criteria is in effect as of April 1, 2019: This version supersedes all previous versions of the criteria. A total of 12 changes were made to the criteria. The changes included cargo securement, brake systems, driver’s seat (missing), exhaust systems, frames, steering mechanisms and others. The OOS criteria are updated annually. For additional information on the CSVA and changes to the OOS criteria, click here.

Cargo Thieves are Changing it Up Again: Cargo thieves are altering their tactics early in 2019. CargoNet reports that 1) Loaded trailer burglaries are growing and becoming the main method of cargo theft in some parts of the country. 2) Fictitious pickup active is resurging after two years of dormancy. Food and beverage were the most frequency stolen during the quarter, despite year-over-year decrease. The top 3 theft states were California, Florida and Texas.

Although Market has Cooled, Capacity is Still Being Added. Class 8 truck orders have plummeted, but 3 year old trucks are at their highest level since 2015. On average, a 3 year old truck is just under $70,000. The reality that prices for these trucks have stayed high after the market has topped indicates many smaller motor carriers and owner-operators are still expanding their fleets or entering the market. Ultimately, growth and contraction cycles take longer to shift than general market conditions. Ultimately, capacity is still being added long after the market has shifted.

NTSB’s 3rd Round Table on Distracted Driving: The National Transportation Safety Board’s (NTSB) roundtable took place on April 11th and included perspectives from the trucking industry. During the roundtable it was noted that successful accountability consists of 3 things: the organization, the individual and the peers. Over 20 speakers took part and it included comments from experts, industry executives and drivers. It was noted that a recent Texas A&M Study showed that 1 in 12 Texas drivers is likely on their phone. Distracted driving is on the NTSB’s Most Wanted List of Transportation Safety Improvements. More information regarding the Roundtable can be found here:

FMCSA Plans to make Crash Preventability Project Permanent: In remarks at the Mid America Truck Show in early April, DOT Secretary Elaine Chao noted that the DOT is seeking to make the Crash Preventability Program permanent after the demonstration program ends on July 30th. This is due to positive feedback from stakeholders. The program allowed motor carriers to file DataQs for review of 8 specific types of crashes. If successful, those crashes would be removed from that motor carrier’s Crash BASIC. Additional information on the Crash Preventability Program can be found here.

FMCSA Declares South Dakota Truck Driver to be and Imminent Hazard to Public Safety: Between January 2017 and March 2019, Mr. Hall tested positive for drugs during a random test, failed to comply with the return-to-duty program by failing additional tests, caught on a traffic stop with additional drugs and was still operating a truck as late as March of 2019. Despite motor carrier enforcement’s best efforts, situations like this still occur. With the roll-out of the CDL Drug & Alcohol Clearinghouse in early 2020, hopefully scenarios like this can be prevented in the future. For additional information on the Imminent Hazard declaration, click here. For information related to the Drug & Alcohol Clearinghouse, click here.

47,000 Bridges Deemed Deficient by the Department of Transportation: According to the Federal Highway Administration’s definition, a structurally deficient bridge is one with any component (deck, structure or culverts) is in poor condition. According to one organization, it could take 80 years to make repairs to these bridges at the current pace. Additionally, it could cost $171 billion to fix these bridges. For more information on National Bridge Inspections, click here.

DOT Updates Drug Testing Regulations: The DOT made changes to its drug testing rule for safety-sensitive employees to ensure consistency with amendments made to 49 CFR Part 40, “Procedures for Transportation Workplace Drug and Alcohol Testing Programs.” These revisions were originally implemented in early 2018. The revisions added requirements to test for oxycodone, oxymorphone, hydrocodone, and hydromorphone to DOT-regulated drug testing programs. Previously covered drugs morphine, 6-acetylmorphine, and codeine are also considered opioids. More information on the FMCSA’s Drug & Alcohol rules can be found here.

Number of Job Openings Declined to 7.1 Million in February 2019: This is a decline of 538,000 from the previous month. The job openings rate (the number of job openings as a percentage of total employment plus the total number of job openings) was 4.5 percent in February, decreasing from 4.8 percent in January 2019. The number of job openings fell for total private (−523,000) and was little changed for government. Job openings decreased in a number of industries. The largest decreases occurred in trade, transportation, and utilities (−160,000). For more detailed information on this and other BLS statistics, click here.

Interesting Tidbits:

Are you interested in training your staff on issues related to driving a commercial motor vehicle? Occasionally we get asked about ways our clients can provide education to their staff when it comes to helping them understand what it’s like to drive a truck, or perhaps what a roadside inspection looks like. When I get these questions, I encourage them to reach out to the National Association of Publicly Funded Truck Driving Schools or another local truck driving school. Often times these schools can customize an onsite training course specific to your needs.

Questions that can be answered include, but are not limited to:

-What’s the view from a truck?

-Where are the blind spots?

-What is “pulling the 5th wheel pin” or “sliding the tandems”?

– How do you secure a load?

-What kind of training does a new CDL driver receive?

-What is a level 1 inspection?

Some schools will also offer students the opportunity to drive a truck on a closed course and/or use a skid pad. These educational opportunities are invaluable and will go a long way in helping your staff better understand the trucking industry.

CASES

Auto
The court agreed to dismiss claims for recklessness, punitive damages and negligent/reckless entrustment which were asserted against a tour company by a truck driver who was struck by the bus. The Western District of Pennsylvania held that the plaintiff failed to allege sufficient facts to allow those causes of action to continue. Whetstone v. Malone Bussing Services, 2019 WL 1459022.

The Court of Appeals in California upheld a defense verdict when the plaintiff drove his jeep into the back of a truck improperly parked in a gore point near a highway exit. The court held that the trial court was not required to permit a jury instruction that the truck driver was negligent per se in parking at the gore. Taulbee v. E.J. Distribution Corp., 2019 WL 1771978

The federal government was not granted summary judgment in an action commenced by a driver for injuries suffered when delivering heavy equipment to a designated location. The Eastern District of New York held that there were sufficient questions of fact as to whether the location was properly lit so as to allow the plaintiff an ability to see where he was going. The shipper, however, was granted judgment as there was no evidence that it was aware of the defect in lighting and did not undertake to control the method and manner of delivery. Iannucci v. Lewis Tree Serv., 2019 U.S. Dist. LEXIS 57531

Expert issues were considered in the Eastern District of Louisiana in an action for personal injuries following a truck accident. The court found that the testimony of defendant’s accident reconstructionist, Dr. Welch, except for his specific medical causation opinions, were reliable and admissible at trial; However plaintiff’s reconstructionist did not fare as well as his statements did not require any specialized knowledge. Finally the court concluded that the trucking company was entitled to summary judgment on plaintiffs’ direct negligence claims because it had stipulated that it was vicariously liable for the actions of the driver. Thomas v. Chambers, 2019 U.S. Dist. LEXIS 65900

Who is responsible for an improperly packed trailer when the cargo hits the driver and injures him? The Court of Appeals in Indiana granted summary judgment to the cargo owner, but not to the company which handled the distribution of the product. As they pre-loaded the trailer there was a reasonable argument that a duty was owed to the driver. Wilkes v. Celadon Grp., Inc. 2019 Ind. App. LEXIS 161

The same issue may be decided in the Western District in North Carolina in an action where the cargo fell on the driver. The court denied the defendant’s motion to transfer venue to Georgia, its home venue. The court held that the defendant did not sustain its burden to show that transfer was necessary under a venue analysis. Sellers v. Whole Foods Mkt. Group. Inc., 2019 U.S. Dist LEXIS 56145

In California operating a vehicle without a commercial driver’s license is not evidence of negligence unless it is found to have proximately caused the accident. The court held that it was enough that witnesses agreed the rental contract required the operator of the water truck to have specialized skill, training, and testing. The jury was not permitted to see the contract, which specifically required a certain type of license. The lessor was found liable for 10% of the plaintiff’s injuries for failure to warn about defects in the trailers. The 4th Appellate Court reversed the decision, finding that the jury apparently rendered a compromise verdict and the special verdict form was defective as it did not require a determination as to the percentage of fault for all parties. Golston v. Hertz Equipment Rental Corp. 2019 Cal. App. Unpub LEXIS 2448

The District Court in Connecticut allowed a defendant to amend his counter-claim for his own injuries arising from an accident between two tractor trailers. The court noted that the defendant’s direct complaint was dismissed due to a procedural error, not on the merits, and allowing the defendant to pursue his claim via the counterclaim was in the interest of justice. Boahen v. Trifiletti, 2019 U.D. Dist LEXIS 64764

Where a case involves multiple defendants, a court should not enter judgment against a defaulting party who may be jointly liable until the court adjudicates the matter with respect to all defendants. The Northern District of Alabama denied the plaintiff’s request for default against one of the many parties who were alleged to own the tractor and/or the trailer. Peace v. Rock, 2019 U.S. Dist. LEXIS 65310

A transportation contract between a shipper and a motor carrier did not obligate the motor carrier to defend the shipper for its own negligence. The Eastern District of Virginia concluded that in the absence of such claims the shipper was not an additional insured under the carrier’s general liability or business auto policies. Waste Mgmt. v. Great Divide Ins. Co., 2019 U.S. Dist. LEXIS 59477

Plaintiff was not given an opportunity to identify additional experts when the opinion of the new expert did not constitute rebuttal evidence to the defendant’s expert’s testimony. The Eastern District of Kentucky concluded that the expert’s conclusions that the driver failed to yield the right of way and failed to follow the Ohio Commercial Drivers’ License Manual and the Federal Motor Carrier Accident Counter Measures Manual ordinarily would be expected to be presented during the plaintiff’s case-in-chief. The expert’s conclusions regarding failure to yield and failure to keep a proper lookout did not constitute real rebuttal evidence. Hampton v. Bob Evans Transp. Co., LLC, 2019 U.S. Dist. LEXIS 56662

Sometimes an accident is simply an accident. The Northern District of Alabama granted summary judgment to a motor carrier and driver on claims of negligent and wanton maintenance, service, and repair; negligent and wanton hiring, and training; and wanton supervision, retention, and entrustment. The court did not grant judgment on general claims of wantonness as there was a question as to whether the driver’s actions were inherently reckless, as he was speeding and on his cell phone at the time of the accident. Green v. Markovitch, 2019 U.S. Dist. LEXIS 66740

The 5th Circuit Court of Appeals issued a new decision clarifying it decision in a case reported on in February, 2019. The court continued to affirm that the motor carrier waived a defense regarding the issue of statutory employees, properly defined a motor carrier, agreed that the trooper could who investigated the accident could testify as an expect and allowed for the loss of future consortium. The only saving grace for the defendant was a remand on the issue of the trial court’s application of past loss of consortium damages and the application of a settlement credit. Puga v. RCX Solutions, Inc., 2019 U.S. App. LEXIS 11229

Another trucker was unsuccessful in recovering from a trucking company when he claimed that the driver hit his tractor in a rest area. The Eastern District of Kentucky granted summary judgment to the defendant concluding that the plaintiff failed to assert sufficient facts to support the identity of the carrier that struck him. Emiabata v. PAM Transport, 2019 WL 1388861

An insurer was unsuccessful in applying the employee exclusion under a policy based on its argument that the statutory definition of employee should govern over the policy terms. The Northern District of Illinois also disagreed with the position that the driver was a leased worker. The duty to indemnify was left open pending the resolution of the underlying case. National Continental Ins. Co. v. Vukovic, 2019 WL 1331790.

A broker’s motion to dismiss claims against it for a personal injuries suffered by the plaintiff in a truck accident was denied. The broker sought dismissal on the grounds that the claims were preempted by FAAA. The Southern District of West Virginia held otherwise. The court concluded even if that state’s negligent hiring claims had a sufficient impact on the price, route, or service of a broker so as to satisfy FAAA, it would not be preempted because it would fall within the general “safety regulatory exception” of the statute. Gilley v. C.H. Robinson, 2019 WL 1410902

Sanctions were awarded against a trucking company that failed to obey a discovery order. The defendant was ordered to pay the costs for the motion and the expenses related to trying to seek a copy of the defendant’s insurance policy. Mosley v. Spartan Freight Systems, 2019 WL 1375096

Who was entitled to recovery for the wrongful death of a child who was struck by a tractor trailer was the topic of motions in the Middle District of Louisiana. The court held that while permanent custody had been granted to the aunt and uncle they were not permitted beneficiaries under the statute. Questions of fact remained as to whether the father was deemed to have abandoned his son and therefore not be entitled to recover for his death. Dixon v. Garner, 2019 WL 1370855

The 5th Circuit denied plaintiff’s efforts to seek a new trial. She contended that the pain and suffering award was impermissibly low under Louisiana law, newly discovered evidence from a previously unidentified officer on the scene required a new trial, and the jury had reached a “compromise verdict/” The court affirmed the lower court ruling concluding that the truck accident caused little pain and suffering, that the inconsistency in the original verdict was cured after the jury further deliberated, and that plaintiff had not shown that she exercised due diligence in obtaining the newly discovered evidence prior to trial. Wright v. National Interstate Insurance Co. 2019 WL 1422815.

Technicalities will often prevent summary judgment. The Appellate Division in New York denied summary judgment to a trucking company which operated as a distribution facility. A truck driver brought personal injury action against the trucking company alleging that company overloaded driver’s trailer causing the trailer to buckle and break apart, which resulted in truck crashing into a concrete divider. The court held that the submission of a distribution agreement as evidence was unacceptable as it did not properly establish the relationships between the parties and was submitted by general counsel of a non-party affiliate. Clarke v. American Truck & Trailer, Inc. 2019 NY Slip Op 02448

The Appellate Division in New York reversed the denial of summary judgment to one plaintiff. In opposition to the motion the truck driver’s summary judgment affidavit was insufficient to raise triable issue of fact so as to preclude grant of summary judgment to motorist on issue of liability. The submission of an affidavit which contained version of the facts which seemed tailored to avoid consequences of his prior admission to police officer, that he backed into motorist’s vehicle, was premised on speculation, and was inconsistent with the photographs of the damage to motorist’s car. Thompson v. Coca-Cola Bottling Co., 2019 WL 1338267

As long as the plaintiff tried to amend the complaint to add a party within the statute of limitations, the Southern District in Illinois held that it was inequitable to not toll the statute of limitations when the plaintiff was waiting to hear from the court. The defendant’s motion to dismiss was denied. Stine v. Homan, 2019 WL 1294996. In a related decision the court refused to dismiss redundant claims against the truck driver, concluding that the various iterations in the claims had some distinguishing factor which allowed it to move forward. 2019 WL 1385226

Even when the plaintiff is willing to limit damages to less than $74,000, the initial complaint indicated damages might exceed the jurisdictional limit so removal was correct. Moreover, the Eastern District of Missouri held that while the forum defendant rule will generally limit the ability to remove a case, that rule will apply only when the forum defendant was served before the removal. O’Brien v. US1 Logistics, LLC, 2019 WL 1491628

A commercial truck driver who resided in Illinois and was injured in a collision in Ohio with a tractor trailer owned by a Missouri food manufacturer brought a negligence action against the driver and the manufacturer in Illinois. The Appellate Court in Illinois held that the Missouri food manufacturer was a resident of Cook County within the meaning of the corporation residence statute for purposes of venue because it established an “other office” in Cook County when it hired employee who was specifically hired to work out of his Cook County residence to service several of food manufacturer’s Illinois customers, and provided the employee with an email address and corporate extension with which to do so. Tabirta v. Cummings. 2019 Il. App (1st) 17289-B

The availability of punitive damages in the context of automobile accidents is extremely limited says the Western District of Kentucky. The mere violation of some traffic law, and the sale or loss of the tractor trailer after the accident were insufficient to demonstrate gross negligence sufficient to support an award of punitive damages. The punitive damages claim against the trucking company was dismissed. Faith v. Warsame, 2019 WL 1359266

A jury verdict against a bus company and its driver was upheld in the Court of Appeals in Ohio. The jury awarded $23,018,790 in compensatory damages and $4,000,150 in punitive damages, $1,276,938.96 in prejudgment interest and $300,000 in attorney fees. The court denied all arguments raised by the bus company. Sobrey v. Greyhound Lines, 2019 WL 1569626

The Court of Appeals in Louisiana reversed summary judgment in favor of a trucking company and its insurer on the issue of signage and voluntary assumption of a duty to warn when questions existed as to warnings posted on moving log trucks. However the court did affirm the granting of summary judgment in favor of one driver, the trucking company and its insurer on the issue of vicarious liability under Louisiana law and the FMCSR. The court also agreed that the insurer provided no coverage for a trucker whose policy had been cancelled for non-pay. Saldana v. LaRue Trucking, 2019 WL 1549895

Is the USPS responsible for injuries arising from a truck accident when a motor carrier was hauling mail for the USPS? The District Court in New Jersey refused to dismiss a complaint against the USPS on jurisdictional grounds, concluding that there were questions of fact on whether the motor carrier and its driver was an independent contractor or an employee of USPS. The court held that it was too early in the action to determine definitively that USPS had no hand in the operations of the motor carrier or its driver. Blumberg v. Rolle, 2019 WL 1529960

Plaintiff’s efforts to argue that a passenger in the tractor trailer was liable for failing to take action to prevent an accident failed in the District Court in Oklahoma. Cox v. Swift Transportation Co. of Az, 2019 WL 1546941

One motor carrier’s argument that it was entitled to judgment on the issue of whether it owned a vehicle was rejected in the Middle District of Pennsylvania. The court held that since the operating company did not specifically admit ownership the defendant must stay in the case. The court also rejected a Graves Amendment argument, concluding that the plaintiff could allege a cause of action as long as it was not based solely on the ownership issue. Petit v. Penske Truck Leasing, 2019 WL 1571067

The Superior Court of New Jersey remanded a case for personal injuries arising from a truck accident back for a new trial. While the plaintiff was successful against the trucker she was unhappy with the amount. The court held that the trial court rulings on the admissibility of certain medical records prevented the jury from fully assessing the injuries. Orbea v. Butler, 2019 WL 1452702

Cargo
Interesting issue considered by the Northern District in California. As the court noted it sounded like a law school exercise. Two accidents, cargo damaged in the first and then again in the second when another vehicle hit the cargo on the road. The motor carrier and all of the parties involved in the transportation settled with the cargo owner. The trucking company which hit the cargo in the second accident opposed a good faith settlement which would have precluded a contribution claim. The court granted the plaintiff’s motion, allowing the settlement to proceed and remanded the case to state court as the Carmack action was concluded by the settlement. The Board of Trustees v. Trump Card, Inc. 2019 WL 1436349.

The Middle District in Pennsylvania vacated a default entered against a trucking company for a cargo loss. The motor carrier was found to have a meritorious defense when it alleged that poor weather conditions amounted to an act of God. That fact that the motor carrier failed to notify the appropriate parties that it was moving its corporate location was negligent and would require payment of sanctions, but was not enough to allow for the default to stand. Pets Global, Inc. v. M2 Logistics, 2019 WL 1453082

A broker was unsuccessful in asserting a Carmack claim against a trucker when the cargo was damaged by the consignee when offloading it from the truck. The Court of Common Pleas in Ohio also held that while the broker was authorized to withhold freight charges under the contract once the claim was dismissed the invoice was owed to the carrier. Total Quality Logistics, LLC v. Balance Transportation, 2019 WL 1531208

Technicalities again. The Eastern District of Kentucky would not dismiss an amended complaint against a motor carrier when the plaintiff amended the complaint to assert causes of action against another party and forgot to include the Carmack claim on the second go round. The court held that the motor carrier could not have thought it was getting out of the case that easily. Re-borne v. Panther II Transportation, 2019 WL 1371838

A truck broker was found to be liable as a motor carrier under the Carmack Amendment in a suit seeking damages for a cargo loss. The 3rd Circuit Court of Appeals upheld the trial court’s decision that the broker acted as a carrier while the broker argued that it did not give its consent to be listed as a carrier on the bill of lading, it never took physical possession of the cargo, it entered into an independent contractor relationship with NRT, and the shipper was at fault for failing to investigate the broker’s services. Tryg Insurance v. C.H. Robinson, 201 WL 1766995

The Third Circuit Court of Appeals held that a transportation broker did not lack standing under the Carmack Amendment to recover its losses from carrier for shipment of cheese that was destroyed due to safety concerns about exposure to warm temperatures in transit, even though the Carmack Amendment did not grant brokers a right to sue, since broker could still avail itself of provision granting right of action to a person entitled to recover under the receipt or bill of lading, and carrier failed to demonstrate that broker was not a person entitled to recover its losses under that provision, and further, broker’s claim could reasonably be considered under theory of equitable subrogation or as an action for apportionment under apportionment provision of the Carmack Amendment. Mecca & Sons Trucking Corp. v. White Arrow, LLC/, 2019 WL 1338518

Worker’s Compensation
A worker’s compensation insurer was entitled to assert a subrogation lien against a truck driver. The Western District in Pennsylvania, applying Tennessee law, held that Tennessee workers’ compensation law provides that an injured employee who received workers’ compensation benefits may pursue an action against the third-party tortfeasor that caused his injuries, but it also allows the employer to enforce a subrogation lien against the employee’s third-party recovery. Ozark Motor Lines. v. Boren, 2019 WL 1409697
A motor carrier who sought to avoid being an “up the ladder” employer of a trucker operating a leased with driver vehicle was denied that determination. The Court of Appeals in Kentucky affirmed the lower court determination that the facts did not support a conclusion on the issue, remanding the case for further findings of fact. Tryon Trucking v. Medlin, 2019 WL 1422910

An insurer’s declaratory judgment action was stayed in the District Court in New Jersey due to a separate suit in a state court. The insurer sought to avoid a claim made against a trucker under FELA. As the motor carrier was still litigating the issue of its obligations under FELA it was premature to determine the coverage. Continental Indemnity Co. v. H&M, 2019 WL 1379884

The Court of Appeals in Kentucky was busy with worker’s compensation issues this month. It considered whether public policy demands that the notice of coverage filed with the DWC by a PEO operates to establish insurance coverage on all employees of the trucking company it is working with, not just the employees assigned under the PEO service agreement. The court determined that it did not. The applicable statute provided a framework under which a PEO may contract with an employer to provide leased and insured employees without being bound to provide workers’ compensation coverage for the employer’s non-leased employees. Uninsured Employers’ Fund v. TLC Companies, 2019 WL 1423099

A default judgement entered against a trucking company in a breach of contract action for failure to pay premiums under a workers’ compensation insurance policy was upheld. The Supreme Court of Appeals in West Virginia held that the trial court acted within its discretion in denying, as untimely, a motion to set aside a default judgment on the basis of mistake, fraud, misrepresentation, and excusable neglect when the stated grounds for relief were all subject to a one-year time limitation that had already expired. Amoruso v. Commerce and Industry Insurance Company, 2019 WL 1430769

A truck driver injured outside of Iowa was entitled to workers’ compensation benefits under Iowa Code section 85.71(1)(b) (2014). The Court of Appeals of Iowa concluded that the “contract of hire” between employer and employee was “made in this state.” Because the parties assented to all terms of the contract while he was in Iowa, his claim met the requirement of territorial jurisdiction under the statute. Niday v. Roehld Transport, Inc., 2019 WL 1486603

Well, spring is finally here. The weather is more spring-like in certain areas, but less in others. Regardless, astronomical spring arrived on March 20th and I’m expecting warmer weather! Some of you may be coming off of spring break trips. I hope you had safe travel and were able to re-charge those batteries in anticipation of the warmer weather.

With the potential for beautiful weather, it’s a good time to remind ourselves to look out for pedestrians and bicyclists that may now be sharing the roads with us. Additionally, it’s important to be extra aware of children especially in residential areas and school zones.

This month’s enhancement is located on the Inspections / Accidents tab in the Motor Carrier/CAB Report. Based on input from users, our developers have added a Vehicle Age Breakdown table (yellow arrow).

The Vehicle Age Breakdown section provides the age of both power unit and non power units at the time of the inspection. The table defaults to 24 months of inspection information, but you can also adjust it to 12 months if you’d like to view less data. Keep in mind, vehicles can be inspected multiple times during the 12 or 24 month period. The Vehicle Age is broken down into 5 convenient buckets for quick review and understanding. For additional detail, you can click on the blue numbers for a complete list of all vehicles inspected during each time period. This tool is useful for quick-view understanding of fleet age and demographics.

As with many of our enhancements, this tool was brought to you by a user that reached out to us with this suggestion. We at CAB are constantly striving to improve our tools and resources to create value for our subscribers. Please feel free to contact us directly if you have any suggestions as to how we can enhance our services. We are a customer driven company and our goal is to help you Make Better Decisions!

This month we report:

Commercial Vehicle Safety Alliance (CVSA) sets dates for International Roadcheck. On March 25th, the CVSA published that the International Roadcheck will take place June 4-6, 2019. The emphasis for 2019’s International Roadcheck will be Steering and Suspension. During that 72-hour period, Commercial Motor Vehicle Inspectors throughout North America will conduct inspections on CMVs and Drivers. International Roadcheck is the biggest enforcement program on CMVs in the world. Roughly 17 trucks and buses are inspected every minute in the U.S., Canada and Mexico during the 72 hours. For more information on the 2019 Roadcheck, click here.

NIOSH reports higher injury and death rates found in Motor Vehicle Towing Industry. From the years 2011 through 2016 nonfatal injuries and illnesses were roughly double the rate for all U.S. private industries. Additionally the motor vehicle tow industry suffered a fatality rate 15 times that of all U.S. private industries. More information on this topic can be reviewed by clicking here.

FMCSA only DOT administration with an increase in the Presidential Budget. The President’s recently submitted budget for 2020 has a 22% reduction in discretionary funding for the Department of Transportation. However, the Federal Motor Carrier Safety Administration will have a budget of $675.8 million, an increase of $9 million from the 2019 budget. Included in the FMCSA proposed budget is $288 million for safety operations and programs, an increase of $4 million. Additionally there was a $5 million increase in safety grants. The Office of the Secretary was provided a large budgetary increase of $1.105 billion for a total of $2.492 billion. Additional specifics related to the 2020 DOT Budget Highlights can be reviewed here.

ATRI releases study on Marijuana Legalization and Impaired Driving: Solutions for protecting our Roadways. The conclusion to the report is as follows: The increasing use of medical and recreational marijuana necessitates a better understanding of the relationship between marijuana use and roadway safety. In gaining this understanding, approaches to deterring, identifying, and prosecuting marijuana-impaired driving can begin. While increased access to marijuana has not directly impacted the trucking industry in terms of truck drivers testing positive for marijuana, the increased frequency of marijuana-positive drivers operating on the same roadways as trucks makes marijuana-impaired driving a critical safety issue for the trucking industry. You can access this and other ATRI Reports here. Regardless of where you stand on the issue, it is likely a comprehensive national approach to the issue will need to be developed in the near future. As the images below reveal, more and more states are adopting medical and/or recreational marijuana laws.

Are your customers still using AOBRDs? When the ELD rule took effect on December 18, 2017 it allowed for a two year period to achieve full compliance in relation to motor carriers that were using Automatic On Board Recording Devices (AOBRDs). Effective December 17, 2019 AOBRDs are no longer allowed and fleets must convert to ELDs. The FMCSA Administrator, Raymond Martinez and others have spent a good amount of effort to get the word out that the change is coming more quickly than some might think. As the infographic below indicates, the FMCSA certainly has the data to show HOS compliance has improved with the ELD Rollout. To assist with this transition, the FMCSA has put together an ELD Home Page where stake holders can gather and review information related to ELDs. You can find that page by clicking here.

The FMCSA’s Drug & Alcohol Clearinghouse is Coming!!! The FMCSA recently released online resources for CDL Holders, Employers, State Drivers Licensing Agencies, Medical Review Officers and Substance Abuse Professionals who will begin using the Clearinghouse in January of 2020. The website offers resources like a fact sheet, implementation timeline, FAQs and more. Among numerous other reasons, the D&A Clearinghouse rule was in-part, established to plug a loophole where a CDL Driver could apply for a CDL position at another company and fail the FMCSA mandated D&A Test, but the current employer would not be notified. The FMCSA Clearinghouse information can be accessed here.

GAO Report on Automated Trucking: Federal Agencies Should Take Additional Steps to Prepare for Potential Workforce Effects. The report noted two possible scenarios: 1. Long-haul highway driving will be fully automated, resulting in fewer trucking jobs and possibly lower wages, or 2. Self-driving trucks may still need operators, possibly changing the skillset and wages without significantly affecting the number of trucking jobs. The bottom line is that hundreds of thousands of jobs could be at risk. However, due to the driver shortage and the perceived safety advantage related to automated trucks, does it make sense and will it all be worth it in the long run? According to the report, most technology developers are developing trucks that can travel without drivers for just part of the route. This technology might be available in 5-10 years. Read the compete GAO report here.

Regulators act to update Entry-Level Driver Training (ELDT) regulations. The final rule is expected to reduce regulatory costs by $18,000,000 annually. FMCSA is amending the Entry-Level Driver Training (ELDT) regulations published on December 8, 2016. The ELDT rule requires the same level of theory training for individuals obtaining a CDL for the first time as for those who already hold a Class B CDL and are upgrading to a Class A CDL. FMCSA recognizes that because Class B CDL holders have prior training or experience, they should not be required to receive the same level of theory training as individuals who have never held a CDL. FMCSA has concluded this change will maintain the same level of safety established by the 2016 ELDT rule. More information about the final rule can be found here.

Interesting Tidbits:

March is Women’s History Month. Two interesting posts by the FMCSA highlight the contribution women have made to the trucking industry going back to the early days. These women were true pioneers and should be applauded for their contribution to the industry.

CASES

AUTO
Multi-vehicle accidents often results in disputes over which collision came first. The Appellate Division in New York upheld a trial court decision concluding that the doctrine of “the law of the case” applied when the trial court held that even where there was a fact issue regarding the order of the collision it would not preclude a later motion for summary judgment, that a rear-end collision between some vehicles could establish a prima facie case of negligence against second tractor trailer owner/operator; but whether there was a sudden and abrupt stop by first tractor trailer precluded summary judgment to first tractor trailer owner/operator. Of further note was the upholding of the trial court determination that the second tractor trailer owner/operator was entitled to adverse inference charge against first tractor trailer owner/operator for spoliation of evidence even if the destruction occurred through negligence, rather than willfulness, and even if the evidence was destroyed before the spoliator became a party, provided the party was on notice that the evidence might be needed for future litigation, in this case the event data recorder. Gitman v. Martinex, 2019 WL 960395

Experts – in or out? In the Western District of Arkansas, Ben Railsback, presented as an accident Reconstructionist, was not allowed to testify because he did not bring any helpfulness to the fact issues the jury needed to resolve. David Dorrity, presented as a trucking safety expert, was permitted to testify but only as to industry standards and could not comment on his opinions on the accident Jordan v. Ventura, 2019 WL 1089430. In a related decision the plaintiff’s doctor was permitted to testify about the cause of plaintiff’s injuries and the connection to the accident. 2019 WL 105363 but defendant’s expert testimony was partially limited. 2019 WL 1233613

When the defendant opposed a plaintiff’s motion for summary judgment with an expert report which was not previously disclosed the Eastern District of New York concluded that the plaintiff was entitled to sanctions which included precluding the defendant from using the report. The court also denied the motor carrier’s motion for summary judgment, concluding that there was a question of fact as to the negligence of the parties. Colon v. Linchip, 2019 WL 959663

A plaintiff’s negligence per se claim was fatally flawed and therefore dismissed by the Eastern District of Missouri. Reliance upon a statute which did not set forth a specific standard of care could not support a claim of negligence per se against a motor carrier accused of operating a vehicle in a negligent manner. Whittaker v. CRST Malone, Inc. 2019 WL 931966

The Eastern District of Michigan agreed that additional negligence claims should be dismissed when a motor carrier accepted vicarious liability for the actions of a truck driver. However the motor carrier was not successful in obtaining summary judgment on the primary negligence, with the court concluding that there were questions of fact which remained to be resolved. King-Moore v. Roadrunner Transportation, 2019 WL 1113143

Pay attention to this decision. The Western District in Oklahoma held that a plaintiff’s request for driver info was relevant and capable of leading to discoverable evidence. The motor carrier was required to produce the driver qualification, personnel, accident, disciplinary, and safety file of every driver that had five or more preventable motor vehicle determinations for a 3 year period. Annese v. U.S. Express, 2019 WL 1089098

An insurer was not permitted to reform an insurance contract because the insured had related companies which were leasing its vehicles. The District Court in New Mexico held that there was no basis for reforming the contract when the insurer did not fully investigate the relationship between the entities. We remind you how important it is to “know your insured” and click on all of those hyperlinks in the Cab Report™ that tell the story. National American Ins. Co. v. ABC Concrete Mfg., 2019 WL 956022

The Western District in Louisiana is leaning toward permitting the testimony of defendants’ DOT Compliance Expert, Lane VanIngen, to be presented to the jury. In virtually all areas the court held that his testimony would be beneficial to the jury and could be used to circumvent the plaintiff’s effort to use the reptilian theory to establish the unsafe operations of the motor and to recover for a personal injury accident. Franco v. Mabe Trucking, 2019 WL 1109879

What documents from prior shipments are discoverable when there is a personal injury action against a truck driver? The Western District in Kentucky concluded that the driver logs and driver routes would be discoverable as those documents could support a claim for negligent supervision and address the capability of the driver to operate the vehicle. Bills of lading were not, however, discoverable. Patterson v. Contract Freighters, Inc. 2019 WL 1223311

The Western District of Louisiana dismissed a claim for punitive damages given that there was no statutory basis for punitive damages or attorney fees under Louisiana law. Even though the defendant was domiciled in another state the court held that the defendant had sufficient contacts with the state to allow Louisiana to prohibit the claim. Stacks v. Harco Services, 2019 WL 1191059

A plaintiff’s efforts to amend its complaint to add the owner of a vehicle which was being operated under the authority of a defendant motor carrier failed in the Southern District of Indiana. The Court held that the plaintiff failed to sustain its burden to establish that the new defendant knew or should have known about the suit. The causes of action were time barred. Miller v. Panther II Transportation, 2019 WL 1171235.

WORKER’S COMPENSATION

The Southern District of Mississippi concluded that the temporal span of medical benefits coverage for an occupational accident insurance policy does not have to be completely coextensive with that available under the Workers’ Compensation Law of Mississippi. A truck driver may in fact have coverage under the occupational accident policy which does not have the same coverage required under a worker’s comp policy. Witte v. Zurich American Insurance Co. 2019 WL 01006241

Does Ohio’s workers compensation immunize a third party from a contribution claim when the third party is a complying employer? Although certain contributing employers are immune as against requests for contribution per Ohio’s workers’ compensation scheme, this immunity is contingent on the plaintiff’s employee’s actions being in the scope of employment at the time of the truck accident. In this case the Court held that there was a question of fact and denied the summary judgment request without prejudice to renew after discovery. Binger v. Alpont Transportation 2019 WL 1167836

CARGO

A state law claim for bad faith for unfair claims handling was dismissed against a motor carrier in the District Court in New Mexico. The court held that such a claim was preempted by the Carmack Amendment. Security USA Services v. UPS, 2019 WL 1051017

The Court of Appeals in Texas denied a request for a writ of mandamus in which a truck broker sought to transfer a suit to the forum noted in its terms and conditions. The court held that the broker could not establish that the customer agreed to the terms and conditions when it entered into its contractual agreement with the broker. That does not bode well for any anticipated limitation of liability. In re Freightquote, 2019 WL 995791

The Southern District of California concluded that it would be appropriate to vacate a default judgment entered against a motor carrier when there was excusable error in answering the complaint and the defendant was able to support a defense that the damages were not fully documented. Pathway Innovations & Technology v. XPO Logistics, 2019 WL 1259165.

Pre and post judgment interest were at issue in a declaratory judgement arising from a cargo loss. The District Court in Minnesota held that a broker was entitled to recovery for the cargo claim, attorney’s fees and pre and post judgment interest. The court however reduced the interest rate for both. Sunteck Transport Company, LLC v. King’s Express, Inc. 2019 WL 1238833